USA – Peru: A Comparison of Citizens’ Right to Access Information

Enacted in 1966 by the American President Lyndon B. Johnson, The Freedom of Information Act (FOIA) was intended to provide U.S. citizens with the right to information by allowing them to access government records. Over the years, the extent of FOIA’s reach waxed and waned. The 1976 Sunshine Act, which was intended to bring greater transparency in the US government, applied several exemptions to the kinds of government records that citizens could access under FOIA. In 1982, President Ronald Reagan issued an executive order allowing federal agencies to withhold information relating to national security. During the Clinton era, FOIA’s applicability expanded to cover previously withheld information regarding national security. In addition, the Electronic Freedom of Information Act of 1996 required that all agencies are required to make certain types of records created after 1996 available electronically. In recent years, FOIA has been modified to allow citizen access to information regarding the Security and Exchange Commission.

Peru’s Ley de Transparencia y Acceso a la Información Pública (Law of Transparency and Access to Public Information) is a relatively recent phenomenon, having been implemented in 2002. The law guarantees the right of every individual to request information from any public authority, regardless of identity or motive. The Ley de Transparencia is drawn from the Peruvian Constitution of 1993, which prohibits informational services from providing information affecting personal and family privacy. It also protects citizens’ right to access information from any public entity, with the exception of information regarding personal privacy, national security matters and other kinds of information specified by law. In special circumstances, bank secrecy and tax reserves may be lifted by a judge, the General Attorney, or the Congress.

FOIA is the standard procedure used by US citizens to access information regarding executive agencies, federal regulatory agencies, and federal corporations. Significant exceptions to the records available under FOIA include national security information, internal personnel rules and practices, confidential business information, and information regarding personal privacy. Likewise, the Ley de Transparencia is Peru’s standard procedure for accessing information. Its reach is much more expansive, covering all public entities. There are three exceptions to the kind of information that the Ley de Transparencia provides: secret information, which generally addresses matters of national defense; reserved information, which concerns information about internal security and the international relationships of the State; and confidential, which protects personal privacy, pending investigations, and the deliberations process before a government decision is made public.

In the US, submitting a FOIA request must be directed to a specific agency. Many agencies have a person designated to process FOIA requests; they also have forms that one can fill out online. If one can state a compelling need for expedition of a FOIA request, then the requestor’s time may be significantly reduced. Some U.S. agencies run a structured FOIA program, while others are more flexible. The variety of FOIA structures and responses is largely due to the number of requests that agencies receive as well as the kind of program that they administer. Other differences may result from the agency’s culture or from their possible lack of experience with FOIA requests. There is never a standard behavior when processing information requests. Sometimes agencies are willing to provide certain information without receiving a FOIA request. However, in other cases, agencies are reluctant to do so, thus forcing requestors to use FOIA and its appeals process.

Experts recommend writing requests in a specific format with a detailed explanation of what kind of information is being requested in order to reduce potential delays. However, depending on the agency and the nature of the request, processing FOIA requests can take a long time. Some complain of waiting for their FOIA requests for over a year. Some journalists with experience in filing FOIA requests advise that it helps to be persistent by calling FOIA officers at least once a week. When a request for information is denied, making full use of the appeals process is significant in yielding results. Indeed, reporters claim that appealing is essential.

In Peru, the electronic filing system has yet to be fully implemented. Should one file a request for information online, they will find that their request is not being processed. However, the administration attributes this inefficiency to the relative novelty of electronic requests. It is much more effective for the requestor to go to the specific agency and fill out a form in order to submit their request. Filing requests in person reduces the possibility that one will file a request to any entities located in the city in which the requestor lives. Moreover, it makes it practically impossible to file a request in entities located elsewhere. The results of requesting information in Peru vary due to several factors. Some entities are more willing to provide information than others. In some cases they provide more information than is necessary, while in other cases they deny requests by providing just a legal reference for doing so. This is the case even when different public entities are responding to requests for the same document. In accordance with Article 11 of the Peru’s Ley de Transparencia, once the requestor has submitted his solicitation for information, the agency has seven days to respond. The agency can request an additional five days to respond if the information is especially hard to find. The agency can respond with information, a denial of the request, or decide to not respond. In theory, there is an appeals process in which the requestor can appeal to someone who is higher up in the hierarchy, but in practice the appeal does not yield positive results.

Access Info Europe and the Centre for Law and Democracy[1] published country scores based on information law, and Peru received a score of 97, which was stronger than the U.S. score of 89. Indeed, based on Peruvian law, Peruvian citizens have access to a wider range of information than US citizens do. However, the stronger Peruvian legal framework has not provided Peruvian citizens with better conditions to access to information than their American counterparts. The US administrative apparatus is much more efficient and responsive in dealing with requests for information, which may be largely in part due to the amount of time that FOIA has existed in the US. In contrast, the Peruvian Ley de Transparencia has only had a decade to build an administrative system in support of the law.